I-601 Waiver News
The applicant in this case is a Honduran female who attempted to enter the United States in 1993 by presenting an altered Honduran passport. She was deemed inadmissible under section 212(a)(6)(C)(i) of the Immigration & Nationality Act for willful misrepresentation of a material fact in order to procure an immigration benefit. She thus required a waiver under 212(i) in order to reside with her mother and children in the U.S.
Although this case decision does not discuss unlawful presence, it appears that the applicant re-entered the United States without inspection and has resided with her mother and her children in the country since 2003. In reality, she was probably also subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B) and required a waiver pursuant to Section 212(a)(9)(B)(v).
Section 212(a)(6)(C)(i) of the Act provides:
In general – Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible…
Section 212(i) provides, in pertinent part:
(1) The Attorney General [now Secretary of Homeland Security] may, in the discretion of the Attorney General [now Secretary of Homeland Security], waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully permanent resident spouse or parent of such an alien ….
The majority of I-601 Waiver cases I prepare on behalf of my clients involve couples. I thereby prepare a comprehensive extreme hardship memorandum (including citation of relevant case law and how they fit the specific facts of my client’s situation) that goes over two scenarios: 1. the extreme hardships the U.S. citizen or LPR spouse would suffer if the applicant is not admitted to the United States; or alternatively, the extreme hardships the U.S. citizen or LPR spouse would suffer if he/she is forced to move abroad and reside in the home country of the foreign spouse.
It is important to keep in mind however that extreme hardship to the U.S. citizen or lawful permanent resident parent also qualifies for purposes of the I-601 waiver. [However, it is only extreme hardship to the U.S. citizen parent or spouse (not lawful permanent resident) that qualifies for purposes of the I-601A Provisional Waiver.]
In this case, the favorable factors are the following:
- Applicant’s mother has lived with her daughter since 2003.
- The daughter provides the mother support, shelter, food, and cares for all her needs and if the daughter’s waiver application were denied, the mother would lose all of this support
- Applicant’s mother provides child care for her daughter’s two children, cooks all the family’s meals, cleans the house daily, and cares for the children until her daughter returns from work.
- Applicant’s son is sixteen years old and has been diagnosed with anxiety, fears, phobias, depression for which he sees a psychologist. If the applicant’s waiver application were denied, the mother would be placed in the situation of caring for her daughter’s son without her daughter’s support.
- Applicant’s mother has arthritis of her right knee, bilateral cataracts, osteoarthritis, and borderline hypertension.
- If the Applicant’s mother returned to Honduras to be with her daughter, she would have no choice but to live with her son, in a three-room structure which is occupied by his wife and their two children. Her son is severely underemployed and cannot support her.
- Applicant’s mother would not have adequate medical care for her medical conditions in Honduras. The presence of diseases and pollution in Honduras would exacerbate her current medical problems.
- Applicant’s mother could be the victim of crime as Honduras uncontrolled, rampant crime.
The second relevant point highlighted by this case is the importance of supporting documents. I-601, I-601A, and I-212 waiver cases are won with solid supporting documents that confirm the statements made in the waiver memorandum.
In this case, the AAO specifically cites the following evidence as persuasive in approving this I-601 waiver application:
- The letter from the mother’s physicians corroborating that she has borderline hypertension, cataracts bilaterally, osteoarthritis, and problems with her right knee, to the extent that she requires continued treatment and was ordered complete rest with daily assistance for thirty days.
- U.S. Department of State issued a Travel Warning for Honduras (U.S. Department of State, Travel Warning, Honduras, dated November 21, 2012).
- U.S. Department of Homeland Security extended Temporary Protected Status for Honduran nationals through July 2013.
- Letter from the Applicant’s son’s physicians
- Applicant’s mother is sixty seven years old and moving to Honduras would disrupt the continuity of her medical care. Re-adjustment to life in Honduras would be difficult given her advanced age and long absence from the country.
- Applicant’s daughter provides her mother with food, shelther, financial support, and takes care of her. They have been living together for the past ten years.